|IN RE: MARVIN MILLS||)||DOCKET NO. 89 3090|
|CLAIM NO. J-314149||)||DECISION AND ORDER|
- Claimant, Marvin Mills, by
- Schroeter, Goldmark, and Bender, P.S., per
- William S. Bailey and Sydney Stillerman Swan
- Employer, Westlake Chevrolet, Incorporated, by
- Department of Labor and Industries, by
- The Attorney General, per
- Beverly Norwood Goetz and Jeffrey Boyer, Assistants
- and Whitney Petersen, Paralegal
This is an appeal filed by the claimant, Marvin Mills, on February 27, 1989 from an order of the Department of Labor and Industries dated January 17, 1989 which corrected and superseded the Department order dated January 12, 1989, and provided that:
WHEREAS, claimant has recovered $145,000.00, and RCW 51.24.060 requires distribution of the settlement proceeds as follows: 1) Net share to attorney for fees and costs ($50,479.04); 2) Net share to claimant ($50,567.21); and 3) Net share to Department ($43,953.75).
WHEREAS, the Department of Labor and Industries declares a statutory lien against the claimant's third party recovery for the sum of $68,632.95;
NOW THEREFORE, demand is hereby made upon the claimant to reimburse the Department in the amount of $43,953.75.
IT IS FURTHER ORDERED no benefits or compensation will be paid to or on behalf of the claimant until such time the excess  recovery totalling $2,257.77 has been expended by the claimant for costs incurred as a result of the condition(s) covered under this claim.
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on timely Petitions for Review filed by the claimant and the Department of Labor and Industries to a Proposed Decision and Order issued on July 19, 1990 in which the order of the Department dated January 17, 1989 was affirmed.
This case was presented for decision based on the parties' agreement that the settlement of the third party claim made by Mr. and Mrs. Mills against numerous defendants included compensation for Mrs. Mills' loss of consortium claim, although the settlement documents did not specify the percentage or monetary award for the consortium claim. The Department asserted a lien pursuant to RCW 51.24.060 against the third party recovery and attributed the entire amount of the recovery solely to Mr. Mills. Mr. Mills now challenges the Department's authority to assert its lien against the entire recovery since a portion of the recovery was to compensate Mrs. Mills.
We agree with our Industrial Appeals Judge that the Department cannot assess its lien against any portion of a third party recovery awarded specifically to the spouse of a worker based on a claim for loss of consortium until such time as the spouse becomes a beneficiary under the Act. In re Charles H. Downey, Dec'd., BIIA Dec., 87 1718 (1989). We have also stated that where the third party recovery is made jointly  by both claimant and spouse without evidence of any determination allocating a portion of the recovery to the loss of consortium claim, and the Department attributes the entire amount of the recovery to the worker, benefits to which the surviving spouse may subsequently be entitled in her own right as a beneficiary cannot be offset by the excess third party recovery previously attributed to the worker. In re Lawrence Guyette, Dec'd., Dckt. No. 89 0832 (September 14, 1990).
Likewise, we agree with our Industrial Appeals Judge that when the court documents from the third party recovery do not specify the percentage nor monetary award for the loss of consortium claim, we cannot speculate as to the amount that should be attributed to the consortium claim. Mr. Mills argues that he is not asking this Board to speculate. He alleges for the first time in the Petition for Review that the affidavit of Robert G. Andre, lead counsel for the defendants in the third party action, was included as part of our record and establishes that Mrs. Mills was entitled to 20% of the recovery as compensation for her loss of consortium. Our records contain no such affidavit. However, even if the affidavit were before us, it would not change the result. If there is no valid court order or settlement document allocating the damages recovered between multiple individuals who may legally share in the third party recovery, it would not be appropriate for us to rely on information developed after the third party recovery has been made and the Department's distribution order issued, to make a determination as to the ownership of the settlement proceeds. 
In the Proposed Decision and Order at page four, our Industrial Appeals Judge stated: "There is nothing in the statute to prevent the Department from exercising its discretion to reduce the amount against which a lien is asserted in consideration of a spouse's claim for loss of consortium", citing RCW 51.24.060(3). With this we disagree in part. The discretion of the Department to compromise its lien under that statute has no bearing on the recovery separately made for loss of consortium. Segregation of a loss of consortium award is not a waiver of lien. If this living spouse had recovered a specific amount for loss of consortium the Department, to that extent, would have no lien against that recovery. This is not a discretionary decision. However, this particular point does not affect the outcome in this case in any event.
After consideration of the Proposed Decision and Order and the Petitions for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order is correct. The proposed findings and conclusions are hereby adopted as this Board's final findings and conclusions and are incorporated herein by their reference.
It is so ORDERED.
Dated this 7th day of December, 1990.
BOARD OF INDUSTRIAL INSURANCE APPEALS
SARA T. HARMON Chairperson
PHILLIP T. BORK Member